1784.
We would next obferve generally, that an outlawry or felony, is a conviction and attainder of the offence charged in the indictments, and has been as long in ufe as the law itfelf. The intention of it was to compel all men to fubmit to the laws of their country, and to prevent their efcaping juftice, by flying, ftaying away, until all the witneffes are dead. It is a very cimportant part of the criminal law ; and we do not find an occafion, where fay queftion of law, upon a writ of error to reverfe an outlawry in a criminal cafe, ever underwent a ʃerious litigation, before that of John Wilkes, Eʃquire, in 1770. [♦]
If there be any thing improper in taking away the life of a man upon an attainder by a judicial outlawry, it belongs to the legiflature to alter the law in this particular ; the judge cannot do it. But council can interpofe their mercy.
In our anfwers, we fhall refer to the queftions, in the order they are place in your Excellency's letter, without inferting them here.
Anfwers to the Queftions.
Firʃt. The proceedings in this cafe are founded on the Act of Affembly, intitled, ‘‘ An act for the advancement of juftice, and more certain adminiftration thereof.’’
Second. Our law books do not inform us, except very rarely , of the executions of capital offenders ; they are generally to be found in the hiftorics of the times, or in the periodical publications; and, therefore, we cannot mention with certainty and modern inftances in England, prior to our Declaration of Independence, of perfons being executed upon outlawry by judicial proceedings alone; but Lord Chief Juftice Mansfield, in Wilkes's cafe, expreffes himfelf thus: ‘‘Flight, in criminal cafes, is itfelf a crime. If an innocent man ‘‘ flies for treafon or felony, he forefeits all his goods and chattels. ‘‘ Outlawry, in a capital cafe, is as a conviction for the crime: And ‘‘ many men, who never were tried, have been executed upon the ‘‘ outlawry.’’ 4 Burrow. 2549.
Third. We do not know of any inftance in Pennʃylvania, of a perfon being executed upon outlawry by judicial proceedings alone : But a certain David Dawfon was executed, fince the Declaration of Independence, in confequence of an attainder by virtue of a proclamation of the Supreme Executive Council, and judicial proceedings thereupon. In that cafe, the Court awarded execution, by pronouncing the ufual ʃentence of death ; no judgment having been given beƒore.
Fourth. We conceive, fuch a mode of attainder compatible with the letter and fpirit of the Conftitution of this State, and that it is no infringement of the right of trial by jury ; for, that the party had not that trial, was owing to himfelf ; he was not deprived of
[♦]See 2 H.H.P.C.205.207.&c. 4 Burr. 2541. 2549. 2 Eftate 268. 4 Burr. 2554.
